What Is Pregnancy Discrimination?
Pregnant employees must be treated like other employees who are temporarily unable to work.
The federal Pregnancy Discrimination Act (PDA) outlaws employment discrimination on the basis of pregnancy, childbirth, or related medical conditions. The PDA was passed in 1978, after the Supreme Court issued a decision holding that discrimination against pregnant women was not a violation of Title VII. Because not all women are pregnant, the Court reasoned, treating pregnant employees worse than others was not a form of sex discrimination. Congress immediately responded, in the form of the PDA, to clarify that it intended "sex" to include the fundamental biological difference between the sexes, the ability to bear children. (For more information, see The Pregnancy Discrimination Act.)
Discrimination Is Prohibited
Pregnant employees—and those recovering from childbirth, an abortion, or the loss of a pregnancy through miscarriage—who need time off from work must be treated the same as other temporarily disabled employees. For example, a company that allows employees to return to work with full seniority and benefit rights after taking time off for a surgical operation and recovery must similarly reinstate women who take time off because of a pregnancy.
On the flip side, however, pregnant employees aren't entitled to special treatment that isn't extended to temporarily disabled workers. If it is company policy, for example, to suspend seniority rights for employees who require extended medical leave, those rights must also be denied to pregnant workers on leave.
Also, while discrimination based on pregnancy is prohibited, an employer isn’t required to provide a pregnant employee with leave—and does not guarantee job security while a worker is out on leave. (However, the Family and Medical Leave Act may require pregnancy and parental leave, with the right to be reinstated afterward. Some state laws also give employees the right to pregnancy leave. See our Time Off Work articles for more information.)
Mandatory maternity leaves are illegal, as are policies that require women to take a set amount of time off for pregnancy or childbirth. Instead, the employer must base its decisions on the employee’s ability to do the job. A pregnant woman cannot be required to take a leave from work during her pregnancy as long as she can perform her job duties.
In the past, employers in some industries used to require women to take leave once their pregnancy was evident or reached a certain point. Some employers felt that customer or clients wouldn’t feel comfortable being served by a pregnant woman; others acted out of concern for the woman’s pregnancy. Either way, it is illegal discrimination to make job decisions based on the fact of an employee’s pregnancy rather than on the employee’s ability to do her job.
EXAMPLE: Jody’s pregnancy is proceeding without problems, and she has no difficulty performing her job as an office manager. Even though she is a week past her delivery due date according to her doctor’s calculations, her employer cannot force her to take off work in anticipation of labor.
Hiring and Promotion Discrimination
An employer cannot refuse to hire or promote a woman solely because she is pregnant—or because of stereotyped notions of what work is proper for a pregnant woman to do or not to do. An employer may not refuse to hire or promote a pregnant woman because she will need time off for childbirth. Similarly, an employer may not make job decisions based on its assumptions about how an employee will act after having a child. For example, an employer may not assume that a woman will decide to stay home with her child, will work fewer hours, or will be less available for meetings and travel, after having a child.
EXAMPLE: Marsha is the most qualified applicant for a job but is six months pregnant at the time of her job interview. The company cannot choose another applicant simply because it does not want to find a replacement for Marsha when she takes time off to give birth.
Some pregnant employees are subject to medical restrictions during pregnancy that affect their jobs. For example, an employee’s doctor might tell her not to lift items weighing more than 20 pounds during her last trimester.
In this situation, the employee’s right to a light duty assignment depends on how the employer handles light duty requests generally. If an employer routinely provides light duty work to employees who have work restrictions resulting from other temporary disabilities, then it must extend that right to pregnant employees as well.
Some employers make light duty available only to employees who are injured on the job, in an effort to help employees return to work and stop collecting workers’ compensation. Courts have disagreed as to whether these employers can deny light duty work to pregnant employees. (For more information, see Am I entitled to light duty when I am pregnant?)
An employer cannot refuse to provide health care insurance benefits that cover pregnancy if it provides such benefits to cover other medical conditions.
EXAMPLE: The Dumont Company provides complete hospitalization insurance to spouses of female employees but has a $500 cap on childbirth coverage for spouses of male employees. This policy is illegal.